Dr. Gurdip Singh Sindhu and Another vs Sh. Harbans Singh Sidhu

Manmohan Singh, J.—By this order I shall dispose of the two applications being IA No. 4057/2008 & IA No. 8959/2008 filed by the plaintiffs under Order XII Rule 6 CPC and Order XI Rules 12 and 14 CPC for decree in their favour on the basis of admissions made by the defendant in the written statement and for directing the defendant to discover the title documents of the suit property respectively.

The plaintiffs filed the present suit for partition and permanent injunction against the defendant claiming 1/3rd share each in the property bearing No. 16/330 Khajoor Road, Karol Bagh, New Delhi- 110005 (hereinafter referred to as the suit property.) and for rendition of accounts in respect of the suit property and also property bearing Flat No. 302, New Delhi House 27, Barakhamba Road, New Delhi-110001 (hereinafter referred to as "New Delhi House Flat"). The plaintiffs No. 1 and 2 and the defendant are brothers and the three sons of Sh. Sarwan Singh Sidhu and Smt. Beant Kaur Sidhu.

The suit property, in use for residential purposes was purchased by the father of the parties in December 1958 as was the New Delhi House Flat.

Both the plaintiffs are settled in USA. The defendant has an apartment at Gurgaon where he is currently residing.

As per plaint, the suit property has remained unoccupied since about 1985. But the plaintiffs and defendant have been looking after the same. It is submitted that the plaintiffs have been in the habit of visiting the property whenever they are in Delhi.

plaintiffs father Shri Sarwan Singh Sidhu expired on 29th December, 1979. The mother of the parties had predeceased the father after suffering from brain-hemorrhage. By the law of succession, the estate left behind by the deceased including the properties stated above devolved upon the parties to the suit in equal shares. They became co- owners of the properties each having one-third undivided share in it.

The defendant as the lone brother in India acted on behalf of the parties in a fiduciary capacity to look after the joint properties and as a trustee of their interest, he also received rent on their behalf and gave the plaintiffs share of it to them when they came to India.

It is not in dispute that the New Delhi House Flat has been sold by the defendant to Marshall Produce Brokers Company Pvt. Ltd.

When plaintiff No. 1 came to India on 1st February, 2008 he demanded accounts from the defendant for the profits and for consideration received from the sale of the said flat. Thereafter, as per the plaintiffs, the defendant transferred a sum of Rs. 25 lac as share of 1st plaintiff in the New Delhi House property to his bank account maintained with Standard Chartered Bank, Barakhamba Road, New Delhi. However, the defendant has not given any accounts to the plaintiffs although he assured the plaintiffs that he would credit the appropriate amount of plaintiff No. 2''s share in his bank account. The plaintiffs have only prayed for rendition and settlement of accounts in respect of this property.

As regards the suit property which is in common possession and enjoyment of all the parties to the suit, the plaintiffs had requested the defendant on 13th February, 2008 to sell the same so that its proceeds may be divided between the three brothers for proper utilization of the monies in their lifetime. The defendant refused to partition the suit property by metes and bounds and to give to the plaintiffs any share in the same. It is the case of the plaintiffs that the property belongs to the parties and can be divided in equal shares. Since the defendant refused to partition the suit property and also declined to give the title documents, hence, the present suit has been filed.

The plaintiffs in their application under Order XII Rule 6 CPC have prayed that a decree be passed in their favour on the basis of admission made by the defendant in the written statement. There is no impediment in passing a preliminary decree declaring that each party to the suit is owner of 1/3rd share in the suit property. The plaintiffs have denied the right of pre-emption claimed by the defendant on the ground that once the plaintiffs are agreeable for sale of the suit property and specific statement has been made in the written statement that 1/3rd interest can be divided between the parties therefore, the question of any pre-emption and oral arrangement does not arise.

It is also argued by the plaintiffs that the defendant had admitted in the written statement that after the death of their father, the property had devolved upon the parties in equal shares under the Law of Succession.

The plaintiffs have in the present application, modified their prayer for passing a decree against the defendant to the following effect in view of the specific admission made by the defendant:

(a) that the defendant pay a sum of Rs. 35,00,000.00 to the plaintiff No. 2 by transfer to his NRO Account No. 52610704873 with Standard Chartered Bank, Connaught Place Branch;

(b) a declaration that the parties to the suit are owners of 1/3rd share each in property No. 16/330, Khajoor Road, Karol Bagh, New Delhi 110005;

(c) decide the mode of partition and appoint a Local Commissioner to effect the partition of the said property between the parties by sale in public auction and distribution of the consideration between the parties; and

(d) award costs of the suit to the plaintiff.

As regards prayer (a) is concerned, the defendant has admitted his liability to pay a sum of Rs. 35 lac to plaintiff No. 2 who has NRO account number and therefore, the plaintiff No. 2 is entitled for a decree in his favour as prayed.

In the written statement, the defendant has inter alia specifically stated that the plaintiffs are welcome to buy the suit property or sell it the to defendant subject to his right of pre-emption. It is admitted by the defendant that the suit property is available for sale to a co-sharer; subject to the provisions contained in the Partition Act, 1893 especially Section 3 thereof. One-third interest in each property can be divided.

It is also mentioned in the written statement that as far as the sale of the New Delhi House Flat is concerned, the plaintiffs had agreed for the same at the time of oral partition after the arrival of plaintiff No. 1 in February, 2008 when at least 2 or 3 meetings were held between the plaintiff No. 1 and defendant. Besides that, the plaintiffs were also in touch with each other and plaintiff No. 2 had also approved sale of the said property. It was mutually agreed that the sale proceeds would be divided pending reconciliation of payments and receipts. Since plaintiff No. 1 insisted on immediate payment, 1/3rd estimated portion of plaintiff No. 1 was released in March, 2008 in the sum of Rs. 10 lac towards the rent and Rs. 25 lac towards sale.

It is also admitted in the written statement that the defendant had prepared a cheque in the amount of Rs. 25 lac for payment to plaintiff No. 2 on the basis of 1/3rd estimated portion of plaintiff No. 2, who could make arrangement for taking delivery of sale proceeds. However, share of plaintiff No. 2 could not be released due to some problem with regard to IDs required by the Bank.

It is also averred in the written statement that partitioning a L & DO property is impermissible under a perpetual lease. Also, partitioning between the co sharers does not make sense when neither plaintiffs nor defendant use of could have used the suit property as a dwelling unit for themselves or their family. The solution of partition being least pragmatic, as well as legally impermissible, the only solution is to sell the said property.

It is not denied by the defendant that the original title deeds are lying with Mr. A.C. Gulati, Adv., who was to act on behalf of the parties to the suit.

In reply to the application under Order XII Rule 6 filed by the plaintiff, the defendant has stated that the admissions are neither clear, unequivocal nor unambiguous and therefore, the application is liable to be dismissed. The defendant has alleged that he spent Rs. 15 lac on advertisements, brokers and fees of the advocates etc. and some amount on other expenses like upkeep and repair, levies, house tax, chowkidars and caretakers. In total, the defendant spent about Rs. 40- 50 lac. The defendant has averred that he has also invested his time and effort for which he is liable to be compensated in addition to investment of money, which must be paid to him with interest.

It appears from the reply filed by the defendant that he has taken a stand which is contrary to the stand taken in the written statement. In the reply, it is stated that the plaintiffs are not co-owners but co-sharers of a property by virtue of devolution of the estate of the deceased father. It is further stated that plaintiff No. 2 can claim his relief either after he withdraws the suit or when the account is finally settled and since the right of pre-emption is exercised, there is no question of partition of suit property by metes and bounds and there is no admission made in the written statement, as the same has to be read as a whole and not in a piecemeal manner.

It is settled law that the provisions of Order XII Rule 6 CPC are discretionary and not mandatory and it is not incumbent upon the courts in all cases to pass decree on admission by a party and in order to succeed under Order XII Rule 6 CPC, the admission of the other party has to be clear and unequivocal.

However, the purport and intent of Rule 6 of Order XII CPC is to enable the parties to obtain speedy justice to the extent of the relevant admission, which, according to admission of the other party, the applicant is entitled to. The court on its own motion and without even an application by a party can proceed to pass a decree on admissions. The admissions may be made either in the pleadings or otherwise, i.e. the rule is wide enough to afford relief not only in case of admission mentioned in the pleadings but also de hors the pleadings. Thus, the admission contained in letters or other documents written or executed between the parties before the suit action is brought are also sufficient for the purpose of this rule.

There is no dispute regarding the proposition of law under Order XII Rule 6 CPC and the law is quite settled in this connection. Reference has been made to the decision of the Apex Court reported in the case of Uttam Singh Dugal and Co. Ltd. Vs. Union Bank of India and Others, where their Lordships have held as follows:

In the objects and reasons set out while amending Rule 6 of Order 12 CPC it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.

Once the defendant has admitted that partition is least practicable as well as legally impermissible and that the only way out is to sell the same with each party is entitlement being 1/3rd share, the right of pre-emption claimed by the defendant is not sustainable. Further, the defendant can not rely upon oral settlement as alleged. As a matter of fact, the defendant has no where in the written statement alleged that the plaintiffs are not co-sharers of the suit property Thomson Press (India) Ltd. Vs. M/s. Megh and Company and Others, .

As regards the question of partition with regard to the suit property, while reading the written statement, the following admissions are made by the defendant:

(a) In para 8 of the written statement the defendant has specifically stated that the plaintiffs are welcome to buy the suit property or to sell it to the defendant subject to his right of pre-emption;

(b) It is admitted that the suit property is available for sale to a co-sharer subject to the provisions of Partition Act, 1893;

(c) That the partition being least practicable and legally impermissible, the only way out is to sell the same;

(d) In para 9 of the written statement it is admitted that 1/3rd interest in each property can be divided except that the defendant has raised the point of his right of pre-emption which is denied by the plaintiffs;

(e) It is also suggested by the defendant that sale of the property may be ordered by private bidding by the co-sharers;

(f) It is also admitted that the original title deeds are kept with Mr. A.C. Gulati, Advocate who was to act on behalf of the parties to the suit; and

(g) It is also admitted in para 14 of the written statement that payment to plaintiff No. 2 was kept in deliverable state and was to be collected in due course but has remained uncollected owing to the dormant status of his Bank.

During the course of the hearing, the parties have admitted that the suit property is a leasehold property and it cannot be divided by metes and bounds. Even in the written statement a similar statement has been made by the defendant. Although in the plaint, the prayer is made for passing the preliminary decree, the learned Counsel for the plaintiffs has argued that since the property admittedly can not be partitioned by metes and bounds, therefore, the final decree be passed accordingly.

On consideration of the entire gamut of the matter, I am satisfied that there have been admissions of facts by the defendant in the pleadings which sufficiently allow this Court to exercise its discretion in favour of the plaintiffs to pass the decree under the provisions of Order XII Rule 6 CPC without the trial being conducted in view of the well settled law on the subject, even though in the reply to the application the defendant has taken contrary stand to the written statement.

As far as the other relief (a) claimed by the plaintiff is concerned, the defendant has not disputed his liability to pay the said amount of Rs. 35 lac to the plaintiff as his share in New Delhi House flat. However, the defendant has alleged that the said payment is in deliverable state but it will be delivered subject to the condition of withdrawal of the suit and settlement of accounts between the parties. The defendant in the written statement has admitted that no formal accounts have been maintained as the payment was always on informal basis and no receipt vouchers were exchanged, but he has maintained the property between 1979-2008 i.e. till the date of filing of the suit, hence he should be compensated for the said period. No figures have been mentioned in the written statement, though in the reply to the application, the defendant has given vague details of the amount spent without any proof or evidence. No counter claim has been filed by the defendant nor has any court fees been paid to claim the said amount in the written statement except a mere statement in reply to the present application which appears to be an after thought, therefore, the contention of the defendant in this regard cannot be accepted in the absence of any cogent evidence by the same.

In view of the admissions made in the written statement in respect of the suit property, a decree of declaration is passed to the effect that the parties to the suit are owners of 1/3rd share each in property No. 16/330 Khazoor Road, Karol Bagh, New Delhi-110005 in view of prayer (b) of the application.

As per the reasons stated in para 26 of this order to the effect of partition of the said property, the parties are allowed to sell the suit property by way of public auction and distribute the sale consideration between the parties as per prayer (c) of the application.

I hereby appoint Mr. Sanjay Sharma, Advocate (Mobile No. 9810767494, Chamber No. 399, Lawyers Chambers, Delhi High Court) as the Local commissioner who is directed to take necessary steps for inviting offers from the public for auctioning of the suit property. For the purpose of ascertaining the value of the suit property the Local commissioner shall be at liberty to engage the Government approved Valuer who will submit his report to the Local commissioner.

After the Government approved Valuer gives his report the Local commissioner shall fix the same as basic price for inviting offers from the public for sale of the suit property. He shall take all other steps in pursuance thereof by publishing a proclamation of sale in the newspaper and inviting bids in respect of the suit property. The bids shall be accompanied by a token amount towards earnest money. The defendant is also entitled to join the said auction proceedings.

After finalizing the highest bidder, a report shall be submitted by the Local commissioner to this Court. The fee of the Local commissioner is tentatively fixed at Rs. 50,000/- to be shared by the parties in proportion of the entitlement of the parties in the suit premises. The fees of the Government approved Valuer shall also be paid in the same manner.

Renotify on 23rd November, 2009 in the category of Directions.